Date:
20130228
Docket:
IMM-5123-12
Citation:
2013 FC 207
Toronto, Ontario,
February 28, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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KENNER PERLAZA MONTANO (aka
PERLAZA MONTANO)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the May 11, 2012 decision of the
Refugee Protection Division of the Immigration and Refugee Board [RPD or the
Board] finding the applicant to be neither a Convention refugee nor a person in
need of protection. For the reasons that follow, I find that the applicant has
not raised a basis for intervening in the Board’s decision and thus this
application will be dismissed.
[2]
The
applicant is a citizen of Colombia of African descent. He worked with his
grandfather on a farm that his grandfather owned. Starting in the late 1990s,
he and his grandfather were targeted for extortion by the Revolutionary Armed
Forces of Colombia or the Fuerzas Armadas Revolucionarias de Colombia [the
FARC]. The applicant and his grandfather made payments to the FARC for a period
of time but then were no longer able to afford the amounts demanded and stopped
making the payments.
[3]
In
late 2000, eight armed members of the FARC came to the farm after the applicant
and his grandfather had ignored demands for resumption of the payments, and the
FARC pistol-whipped the applicant and pushed his grandfather, who hit his head
and died shortly thereafter. The applicant fled to the United States, where he lived without status from 2001-2011, before coming to Canada and making a refugee claim. Several of the applicant’s siblings and half-siblings have made
successful refugee claims, but the bases for their claims are unrelated to the
applicant’s situation or the basis for his claim.
[4]
The
Board rendered its decision on a number of alternative bases. It accepted that
the applicant was credible but found that there was no nexus to section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA] as
the targeting by the FARC was not based on the applicant’s race or political
opinion and the mere fact that he had been targeted for extortion did not form
a sufficient basis for a belonging to a “particular social group” within the
meaning of section 96 of the IRPA under the jurisprudence. With regard to
section 97 of the IRPA, the Board relied on older jurisprudence to conclude
that the risk the applicant faced was generalized and thus held that the
applicant was not entitled to protection under that section. Finally, the Board
concluded that the applicant had not rebutted the presumption of state
protection, in part because the applicant had not submitted any credible
evidence that the FARC would still be looking for him over a decade after he
had fled from Colombia and in other part because the country conditions had
changed since 2000, with the Colombian government having made some success in
bringing members of the FARC to justice.
[5]
The
applicant challenges the Board’s reasoning with respect to section 96 of the
IRPA, alleging that the RPD failed to undertake any analysis of his claim to be
at risk by reason of race or political opinion, associated with his trying to
organize the land owners in his area to collectively refuse to pay the “war
tax” demanded by the FARC. He also argues that the RPD’s section 97 analysis is
premised on outdated case law and therefore erroneous. With respect to the
state protection analysis, the applicant argues that the Board failed to
undertake a personalized assessment of whether the Colombian state would be
able to offer protection to him.
[6]
Each
of these issues is reviewable on the standard of reasonableness as each
involves questions of fact or of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51; Hinzman, Re, 2007 FCA 171 at para 38; Pacheco
v Canada (Minister of Citizenship and Immigration), 2012 FC 682 at para
12).
The Board’s
section 96 finding is reasonable
[7]
Insofar
as concerns the section 96 analysis, contrary to what the applicant alleges,
the RPD did not fail to assess his claim to be at risk by reason of race or
perceived political opinion. The Board was well-aware of these claims and at
several points in its decision held that the applicant faced no forward-looking
risk due to race or political opinion. For example, at paragraph 10 of its
decision, the Board held that the applicant and his grandfather had been
targeted by the FARC because they were victims of extortion and not due to
their race or the applicant’s efforts in trying to organize landowners.
Likewise, at paragraph 29, the Board held that the applicant did not fit the
profile of an Afro-Colombian community leader (who might be at risk of
violence).
[8]
There
was ample evidence before the Board from which it could draw these conclusions
as the applicant testified that his fear stemmed from the risk of being
extorted by the FARC but did not mention any risk of being targeted due to his
race or his efforts with the landowners (which were not successful). His
Personal Information Form likewise failed to make any claim of being at risk by
reason of his race or political opinion (as opposed to merely noting a racist
remark made by one of the FARC soldiers when the attack occurred.) This case is
therefore distinguishable from Gonsalves v Canada (Minister of Citizenship
and Immigration), 2011 FC 648, relied upon by the applicant as there,
unlike here, the applicants repeatedly claimed that the multiple attacks they
suffered were racially motivated and the objective country evidence established
that members of their ethnic group were at risk of persecution throughout the
entire country.
[9]
Here,
on the other hand, the situation is entirely dissimilar and the objective
documentary evidence does not require an assessment of the applicant’s risk by
reason of race, as might be the situation for other ethnic groups, like the
Roma in Eastern Europe or the Indo-Guyanese in Guyana. The portions of the
country documentation before the RPD in this case which spoke to the risk faced
by Afro-Colombians largely define such risk as one of being displaced from
lands that the FARC want for strategic reasons. Such risk does not apply to the
applicant, who has not been in Colombia since 2000. Thus, in light of the
evidence before the Board, it was reasonable for it to conclude that the risk
faced by the applicant was related to extortion and the refusal to continue to
pay the “war tax” to the FARC and there was no need for the RPD to have
independently assessed a possible race-related risk. And, being targeted for
extortion does not bring an individual within the purview of section 96 of the
IRPA (see e.g. D (EA) v Canada (Minister of Citizenship and Immigration),
2011 FC 785 at paras 16-17; Romero v Canada (Minister of Citizenship and
Immigration), 2011 FC 772 at para 9).
The Board’s
section 97 finding is reasonable
[10]
Likewise,
the Board did not err in its section 97 analysis as there was no evidence to
indicate that the applicant would likely be targeted by the FARC in the future
with any greater likelihood than any other person of some means in Colombia,
who all face risk of extortion. Such risk has time and again been found to be
insufficient to found a claim under section 97 of the IRPA (see e.g. Ponce v
Canada (Minister of Citizenship and Immigration), 2013 FC 181 at paras 2-3;
Garcia Kanga v Canada (Minister of Citizenship and Immigration), 2012 FC
482 at para 10; Innocent v Canada (Minister of Citizenship and Immigration),
2009 FC 1019 at paras 49 and 68). In this regard, the Board held that there was
“no credible evidence to show that anyone from the FARC has looked for the
claimant since his last interaction with them in December 2000” (decision at
para 44). This conclusion was entirely open to the Board on the record as the applicant
has not been in Colombia for 12 years and submitted no evidence to show that
there was any likelihood that the FARC would search him out if he returned to
that country.
[11]
The
applicant’s situation is entirely different from those of the applicants in the
cases where RPD decisions on section 97 generalized risk have been overturned
by this Court (see e.g. Portillo v Canada (Minister of Citizenship and
Immigration), 2012 FC 678; Pineda v Canada (Minister of Citizenship and
Immigration), 2012 FC 493; Ponce Uribe v Canada (Minister of Citizenship
and Immigration), 2011 FC 1164; Alvarez Castaneda v Canada (Minister of
Citizenship and Immigration), 2011 FC 724; Garcia Vasquez v Canada
(Minister of Citizenship and Immigration), 2011 FC 477; Cruz Pineda v Canada
(Minister of Citizenship and Immigration), 2011 FC 81; Aguilar Zacarias
v Canada (Minister of Citizenship and Immigration), 2011 FC 62). In those
cases, unlike here, there was evidence of the likelihood of risk on a
go-forward basis faced by the applicants by reason of being personally singled
out by the FARC or other criminal gangs that put them at greater risk than the
risk faced by a large segment of the general population. As noted, there was no
evidence or claim of any such risk being faced by the applicant in this case.
Thus, the Board committed no reviewable error in its section 97 analysis in
determining that any risk faced by the applicant was a generalized one.
[12]
The
Board’s reasonable conclusions with regards to sections 96 and 97 of the IRPA
are determinative and there is therefore no need to address the applicant’s
arguments regarding state protection.
[13]
Given
these determinations, this application must be dismissed. In light of the
fact-specific nature of this case, there is no question of general importance
warranting certification under section 74 of the IRPA and none was suggested by
either party.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
Application for Judicial Review is dismissed;
2.
No
question of general importance is certified; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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